Update: TikTok has provided a statement regarding the ban by Madras High Court “We welcome the decision of the Madras High Court to appoint Arvind Datar as Amicus Curae (independent counsel) to the court. We have faith in the Indian judicial system and we are optimistic about an outcome that would be well received by over 120 million monthly active users in India, who continue using TikTok to showcase their creativity and capture moments that matter in their everyday lives.”

The Madras High Court is expected to hear objections of Chinese company ByteDance against the Court’s ban of TikTok on 16 April. While it is to be seen if the Madras High Court, or thereafter the Supreme Court (which is to hear the same issue on 22 April) will set aside the interim order, the order presents concerns for the future of content regulation in India.

Image: Reuters

This is because while there is no doubt that there are significant issues with TikTok, a reading of the order does not clarify what justified a ban. Several other sites present very similar issues, and it is unclear what was seen as a differentiating factor that led to the ban. This is particularly important, when sites like Google or YouTube were instead asked by the apex court to develop technological solutions to deal with their content related problems.

Major issues worldwide with TikTok

Worldwide, several concerns have arisen with TikTok and its content, which previously led to its ban in Indonesia and Bangladesh. The primary concern is with the demographic that TikTok attracts, which is a large number of children and youngsters. Despite the age limit of 13 years, children of all ages are using the app.

Parents, in various reports, have expressed concerns with who children were being allowed to interact with, since interaction with strangers is possible via the app. These factors have definitely drawn the attention of sexual predators and other such elements on the app.

(Also Read- Love, Sex Aur Data: Where the line between content and sleaze is too thin)

A 2019 BBC investigation in the UK reported, for instance, the numerous pedophilic comments and interactions on the app. The investigation further reported while TikTok was quite active in removing illegal content or comments that were posted on its app, it was not so when it came to removing or blocking the person who put up such content or comments.

Dealing with online sexual predators via a new law

Though it isn’t clear if TikTok similarly failed to remove such users in India, this is a definite cause for concern, since the risk that is entailed by not blocking such persons is further exposure of other children to the sexual predators. The obligations of an intermediary are not restricted to removing harmful content, but also towards exercising due diligence. An obligation to exercise due diligence surely includes preventing further exposure of the intermediary’s community to illegal content, to the best of its ability.

Under Indian laws, for instance, Section 79 of the Information Technology Act, 2000 incorporates these basic rules of removal of illegal content and due diligence. The IT (Intermediaries Guidelines) Rules, 2011 specifically give intermediaries the right to remove users who do not follow their guidelines under Rule 3(5). This will, at the least, prevent further exposure of children to such individuals.

However, Section 79 and the IT Rules do not include a specific obligation to report such incidents that affect children. Such a requirement, however, can be found under Sections 19 and 20 of the Protection of Children against Sexual Offences Act, 2012, which in fact, prescribe punishments for failing to report such offences against a child. However, the wording of the section makes it unclear about whether intermediaries, which have safe harbor under Section 79, are also subject to this obligation. The Madras High Court’s call in this order for a specific law to deal with the privacy of children online is thus very welcome in this regard.

A reading of the order of the Madras High Court in the present case gives a list of its reasons for the ban, which include a concern of availability of pornographic content, exposure of children to sexual predators, persons being made subject to mockery or pranks, violation of privacy and its addictive tendency among youngsters. In its interim order, the Court stated that ‘…By becoming addicted to TikTok App, and similar apps, or cyber games, the future of the youngsters and mindset of the children are spoiled’.

The reasons, while certainly presenting significant causes for concern, do not specify how TikTok is different from other social media sites like YouTube, Facebook or even Instagram, where similar problems are encountered. Nor does it specify why a direction like requiring TikTok to have proper measures in place to prevent such violations would not suffice. ByteDance, for instance, argues that a very small amount of content – 0.0006%, is flagged as inappropriate by users, and the remaining is legitimate content. This factor, if true, must be taken into account when imposing a ban on the app.

Numerous other cases did not lead to a ban

Numerous other cases, for instance, which dealt with similar content related problems on other sites come to mind. The outcome there did not lead to a ban, but instead led to a direction to find a way to deal with the content.

The Tehseen Poonawalla case is one, which dealt with the fake news menace and resultant mob lyching. Here the Supreme Court had issued interim orders directing the Center to take steps to curb the dissemination of content on social media that could incite violence. Similarly, in the In Re: Prajwalla Letter case, intermediaries like YouTube were asked by the Supreme Court to implement automated content filters to deal with the upload of content like rape videos. In yet another case, the Supreme Court had directed search engines like Google and Yahoo to block content related to pre-natal sex determination.

In the case of TikTok, however, no such option has been given to find a way, say a technological solution to deal with the issue at hand. There is further no mention in the order of any specific failure on the part of TikTok in India, such as a failure to act against illegal content or persons uploading it. The ban of TikTok, in this way, is more reminiscent of the PUBG ban, which cited the addictive nature of the game to ban the game, or of the singling out of WhatsApp by the government to deal with the fake news menace.

Will a precedent be set for wide-spread censorship?

Unlike the PUBG ban and other bans (like internet bans), it is a concern that the TikTok ban is issued by a High Court, and not a district level court, in terms of the precedent an order coming from a higher court may set. There are several such apps and other online activities that present the very same issues, and upholding the order may allow similar bans for all such activities, in effect leading to large-scale and wide-spread censorship of the internet. The question that arises, for instance, is whether a site like YouTube could also be banned tomorrow on the exact same grounds?

There is in fact an increasing number of content related bans in India, such as the bans of Reddit, Telegram or even College Humor from time to time, most of which are without specified reasons and without any apparent legal backing in the form of a court order. Internet freedom organizations like the IFF in fact have reported the ban of at least 250 websites in India.

Will the order be reviewed?

The increasing number of content related bans in the country, often without sufficient reason or sufficient exploration of alternate solutions, is a cause for concern. If an alternate or a less invasive solution is possible, it should be taken into account.

In this case, it will have to be seen if the Madras High Court or the Supreme Court will review this interim order, in view of factors such as the precedent set as well as the viability of adopting alternative solutions, such as requiring the adoption of technological measures or setting minimum standards to be followed.

At present, in pursuance of the order of the Court, the Ministry of Electronics and Information Technology is reported to have asked Google and Apple to pull down the app from their stores. The order has also prohibited the media from airing any videos from TikTok.

The author is a lawyer specialising in technology, privacy and cyber laws.

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